It's not complicated. The gag order against Trump in the D.C. criminal case should be lifted.

When left-liberal judges and their cheerleaders tell us that a case in which their political preferences are at stake is “complicated,” that’s a sign that the case isn’t all that complicated, and should be decided with little hesitation in favor of the side they disfavor.

Consider the D.C. Circuit’s hearing this week on the gag order imposed on Donald Trump by the ultra-leftist judge (Tanya Chutkan) presiding over the prosecution of the former president in the D.C. district court. The order forbids Trump from making public statements that “target,” among others, Jack Smith, the special counsel in the case, or any reasonably foreseeable witness in the case.

I see nothing complicated about overturning this order. Trump is running for president. In fact, he’s the odds-on favorite to be the GOP nomination, and as likely as not to win the general election.

A decent regard for democracy requires that Trump be able to speak freely about a prosecution that already has been, and certainly will be, cited as an important reason not to vote for him. Both the fact of the prosecution and the merits of the prosecutor’s case are significant issues in the campaign. Trump should be free publicly to denounce both Jack Smith and the potential witnesses — e.g. William Barr and Mark Milley — who are warning voters that a second Trump term would be disastrous.

Unfortunately for Trump — and for free speech — he drew a terrible panel to hear his effort to overturn the gag order. Two of the three members — Patty Millett and Cornelia Pillard — were placed on the court by Barack Obama, who nominated them, and Harry Reid, who abolished the judicial filibuster in order to ensure that this all-important circuit court would rubber stamp Obama’s agenda. The third judge, Bradley Garcia, was nominated by Joe Biden.

The three spent nearly two-and-a-half hours agonizing over the matter (or pretending to). The complexity, as Millett explained it, resides in balancing the need to protect Trump’s “core political speech,” on the one hand, and the need to protect the integrity of the judicial system and hold a fair trial, on the other.

But how do Trump’s attacks on Jack Smith, Bill Barr, and Gen. Milley pose a threat to the judicial process or the fairness of the impending trial? Two main concerns were cited at oral argument: (1) threats to the physical safety of lawyers and witnesses whom Trump publicly denounces and (2) the possibility of lawyers and witnesses being intimidated.

The way to address the first concern is by prohibiting Trump from making statements that, in their most reasonable construction, constitute threats. Yes, inflammatory statements that fall short of this standard might conceivably cause a deranged Trump supporter to assault the person Trump criticizes. But that’s not sufficient reason to bar Trump from denouncing Smith, who by bringing this case is making inflammatory charges against Trump. Nor is it sufficient reason to prevent Trump from hitting back rhetorically against potential witnesses who have made inflammatory anti-Trump statements, such as the claim that he’s a threat to the Republic.

Suppose there were no cases being brought against Trump. In that event, Trump would still be ripping Barr and Milley because they are ripping him. As a result, it’s conceivable that some Trump supporter would want to assault one of them or both.

Even so, few would advocate enjoining Trump from ripping these folks or any other of his critics, as long as he doesn’t threaten to harm them physically or tell others to do so. Such an injunction would be anti-democratic.

Why should it be different just because Jack Smith and the Biden Justice Department decided to prosecute Trump? In my opinion, it shouldn’t be.

A counter argument would cite the second concern I mentioned above — the possibility that Trump’s denunciations of participants in the court case might intimidate them, thereby leading to an unfair trial. But this concern has no basis in the reality of the D.C. case.

Jack Smith isn’t going to be intimidated by Trump’s sophomoric rants. Neither is Bill Barr or General Milley. Even Millett expressed doubt that high-level government officials are thin-skinned enough to be intimidated by Trump’s rants, let alone back off from testifying truthfully about him.

Millett wondered, though, whether Trump’s criticism of Smith and others is “core political speech” or “political speech aimed at derailing or corrupting the criminal justice process.” When Trump responds to claims that he’s a felon and/or is unfit for high office, he’s certainly engaging in core political speech. Even if one speculates that Trump also intends to influence the judicial proceeding against him, the political nature of the speech should be enough to protect it.

Moreover, as explained above and as Millett herself noted, it’s difficult to see how, whatever Trump’s intent, his denunciations might derail or corrupt the D.C. prosecution.

Indeed, I’ll argue that, if anything, Judge Chutkan’s gag order tends to undermine the integrity of that prosecution. Many Americans believe that the D.C. prosecution is intended to derail, or at least impede, Trump’s campaign for the presidency. Others, including me, suspect that this might be so.

An order that hampers Trump’s ability to denounce the prosecution and/or potential witnesses who sharply criticize him can only reinforce the perception that the judge is trying to injure his campaign. All presumptions should run against any gag order that will tend to undermine Americans’ faith in the justice system.

It turns out, then, that both of the interests the D.C. Circuit judges said they are trying to balance and protect militate in favor of overturning the gag order and allowing Trump to speak freely, as long as he doesn’t threaten anyone with violence or advocate in favor of violence against anyone.